Media Misleads the Public About the DISCLOSE Act’s Threat to Free Speech

October 5, 2022

The most recent vote in the Senate on the DISCLOSE Act – the privacy-invading legislation that has been introduced and rejected in every Congress since 2010 – inspired some of the worst reporting ever on the bill and its impact on Americans’ First Amendment rights. Major outlets made elementary mistakes that misled their readers about basic provisions in the legislation. Indeed, the average news consumer could be forgiven for thinking the Senate had just rejected a proposal to force super PACs to publicly reveal their major donors, because that’s exactly how many outlets described it. Consider just three prominent examples:

The Washington Post: “Senate Republicans on Thursday blocked legislation that would have required super PACs and other groups to disclose donors who give $10,000 or more during an election cycle…”

Reuters: “U.S. President Joe Biden on Tuesday made a plea for Congress to pass a bill that would require super PACs and certain other groups to disclose donors who contributed $10,000 or more during an election cycle…”

The Hill: “The Disclose Act, introduced by [Senator Sheldon] Whitehouse earlier in April, will require super PACs and other dark money groups to report those who contribute $10,000 or more during an election season.”

The problem? Super PACs are already legally required to publicly report the identities of all donors who give over $200. Not only that, but they have always been required to do this, dating back to their legalization in the case SpeechNow.org v. FEC in 2010. Super PACs are political committees under federal law, and political committees must publicly report their contributors’ identities. Simple as that.

“I don’t know why folks keep saying this,” tweeted Federal Election Commissioner Sean Cooksey in response to the media’s fumbling of the facts. “Super PACs (and all other political committees) are already required by law to disclose contributors who give more than $200 per year (or per election cycle for candidates).”

What the DISCLOSE Act would actually do is force nonprofits to publicly expose their supporters’ names and home addresses if they engage in even a limited amount of political activity. Many of these groups, such as the Human Rights Campaign, NAACP, NRA, U.S. Chamber of Commerce, or Planned Parenthood, have had a voice in our politics for generations and have always had the right to keep their membership private. Far from the shadowy entities implied by the use of the term “dark money,” these groups’ intentions and views are typically well-known, and their presence in our civic discourse is longstanding.

As a result, concerns about DISCLOSE come not only from Republican Senators but from left-leaning groups like the ACLU, which has at times actively opposed the legislation and at others pleaded with Democratic leadership in Congress to change their approach. Americans have a First Amendment right to support the causes of their choice free from harassment and intimidation. In an era of escalating political tensions and cancel culture, privacy is all the more essential to free speech. DISCLOSE would be a huge step backwards for all causes and the Americans who support them.

The media’s confusion about the bill can be blamed on its sponsors, who want you to believe DISCLOSE is all about campaign finance. They certainly don’t want to defend their assault on Americans’ right to privately support social causes. Nor do they want to reckon with the reality that, when the bill causes many valued nonprofits to self-censor and withdraw from policy discussions, the void they leave behind will be filled by yet more speech from politicians, media outlets, and the super PACs they claim to decry.

The thin reed on which the claim that DISCLOSE would force super PACs to reveal their donors stands is that some nonprofits make contributions to super PACs. The super PACs report these donations like any other, so voters can see that the money came from the nonprofit. But advocates of DISCLOSE argue that reporting where the money came from is not enough. They want the names and addresses of the nonprofits’ supporters too, including those who gave for reasons entirely unrelated to politics.

Never in American history has such exposure been required, and never has that been the accepted standard for disclosure, either. Super PACs report their donors, just like every other political committee, including those belonging to candidates, political parties, and traditional political action committees. To say DISCLOSE would require this anew is to deny reality.

It’s not just critics of the DISCLOSE Act who were troubled by the media’s handling of last month’s vote, either. Longtime money in politics reporters Dave Levinthal and Carrie Levine tried in vain to steer things in a more accurate direction.

“As you report on the DISCLOSE Act today, please – for the love of all that’s good and holy – remember: 1) Super PACs *already* must disclose donors. 2) 501(c)(4) nonprofits aren’t required to disclose. 3) Super PACs may take 501(c)(4) cash. 4) Disclosure loophole? See No. 3,” Levinthal tweeted.

Unfortunately, the media’s mess-ups are part of the plan for the DISCLOSE Act’s sponsors. Accurate coverage would reveal how controversial the bill’s provisions really are. The next time you read about legislation to force “political donors” into the spotlight, remember that current law already requires that, and ask what lies beneath. Hopefully, news organizations will start to ask that question too.

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